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The operation of ‘the state of exception’ in BritainThis is a long-form essay on the origins of the far-right in the British state and the clandestine networks of power that sustain them, seen through the life of Sir Joseph Ball by John S Warren.Current events, and the intolerance of the far right provides an insight into the character of British politics. The Labour Government, itself difficult to distinguish from its Conservative predecessor in its fundamental monetary and economic policies (notably in the austerity promoting ‘fiscal rules’) has nevertheless won a General Election in an unprecedented landslide, delivered to drive from office unquestionably the worst Government in recent British history. Nevertheless, the maintenance of the two child cap (blind to Britain’s demographic crisis, with a birthrate far below replacement), and the end of the Winter Fuel Allowance is a further reminder that whatever the election result, the Government that takes office will represent the Single Transferable Party, delivering hard-edged austerity and the same neoliberal ideology. Such broadly circular transfers do not change a great deal; or, as Britain shifts further and further right, lead to the tranquil acceptance of a decisive election result, and allow an only nominal centrist Government the opportunity to solve the problems which, after all brought it to office. In such times as this, it is as well to reflect on the history of the right, and far right in modern British history; which is the object of this paper.The distinguished historian of the Conservative Party, Lord Blake drew passing attention in 1970 to Sir Joseph Ball, as the man Neville Chamberlain selected as a ‘capable henchman’ from the ranks of MI5 in 1930, to run the recently established Conservative Research Department (which had been formed by Lord Eustace Percy). Blake describes Ball’s activities a little oddly for a historian who was writing the Party history, rather as if he was not after all writing the history of the Conservative Party, but was merely a casually passing, and mildly curious observer: “Ball is an enigmatic figure who appears from time to time in some of the more mysterious transactions of the period. His agents managed to penetrate the Labour party headquarters and secure advance copies of its propaganda. One would like to know more about his activities. He was director of the Research Department from 1930 to 1939”. [1] The period of the mysterious transactions just happened to be the rise of Hitler and the beginning of the Second World War. This paper does not pretend to negotiate its way to the heart of this particular darkness; for it is the nature of the political prerogatives it explores – in Britain the concept hovers enigmatically around what is termed ‘Crown prerogative’ – often find it works as if it was operating in an early eighteenth century coal mine, in the darkest shadows, furthest from the light; especially whenever and wherever the ‘state of exception’ makes its presence felt. Sir Joseph Ball remains ‘enigmatic’ to the present day. The purpose of this paper is thus to attempt to provide a pointer to sovereign prerogative power as it can operate, and has operated; albeit a distant and blurred sighting of the real workings of the prerogative, and when under very severe stress; but distinctly in contrast to the only too convenient gloss of lofty abstractions made in the name of, and in defence of, the aspirations of constitutional law.AV Dicey explored the powerful effects of prejudices being carried from the British ‘nation’ (Dicey’s sovereign electorate) into Parliament, where they were advanced and protected. He provided the case of the House of Lords refusal to admit Jews to Parliament, because the electors in turn refused to support the Cabinet in any attempt to oblige the House of Lords to do so: “For many years Jews were kept out of Parliament simply because the Lords were not prepared to admit them. If you search for the real cause of this state of things, you will find that it was nothing else than the fact, constantly concealed under the misleading rhetoric of party warfare, that on the matters in question the electors were not prepared to support the Cabinet in taking the steps necessary to compel the submission of the House of Lords”[2]. The law was long silent on the matter. Dicey appears not to be interested in the fact that what we have, is an instance of the long endured deprivation of rights through the influence of supreme prerogative power; in this case the despotism of a presumed majority; but whether or not that majority is so, it is an instance of what Lord Hailsham later tellingly identified as “elective dictatorship”[3]. Nathaniel Mayer Rothschild, 1st Baron Rothschild (1840-1915) was the first Jew to enter the House of Lords, in 1885. There were Jewish MPs before that, including Benjamin Disraeli (1804-1881), who was not the first Jewish member when he became an MP in 1837. Disraeli became Prime Minister in 1868. Dicey appears to write almost as if matters had materially changed by his own day. Let us examine this at least implicit proposition, specifically in his chosen example of anti-semitism. In 1940, Leslie Hore-Belisha (1893-1957), a Jewish Conservative MP was forced to resign from ministerial office through Neville Chamberlain’s (1869-1940) pressure to remove him discreetly, through multifarious political shenanigans, and in an atmosphere of anti-semitism [4]. Hore-Belisha’s removal was achieved, partly by using certain conventions the office of Prime Minister, and leader of the Conservative Party accessed. Such conventions are conventionally hidden. There was no appeal to law. Hore-Belisha was Minister for War, and in these desperate times, 1939-1940 he had to deal with senior military officers, some still resisting mechanisation and modernisation, who saw the Army primarily as representing essentially the foundation of the long established social system [5]. General Henry Pownall, Chief of Staff to the Commander-in-Chief (C-in-C) of the British Expeditionary Force (BEF) in France, 1940 gave his blunt and revealing (and self-revealing) opinion of the reason for the tensions between Hore-Belisha and an outstanding Grenadier Guard, the C-in-C of the BEF, General Lord Gort VC (1886-1946); which is, in the context of the time, both chilling and salutary: “But the ultimate fact is that they could never get on – you couldn’t expect two such utterly different people to do so – a great gentleman and an obscure, shallow-brained, charlatan, political Jewboy” [6].AJ Trythall, himself a soldier, concludes his Byzantine story of intrigue and obfuscation revealed by the Hore-Belisha scandal, by concluding that, “faced with such an insidious onslaught Hore-Belisha was in the end defenceless because he did not fit, because he was a Jew and an outsider and because he had no substantial political basis of support in Parliament. The dislike and distaste many officers felt for him was not the cause of Hore-Belisha’s downfall, but it greatly helped to motivate those who worked against him at the end. No ordinary Secretary of State would have generated such feeling, but Hore-Belisha was not one of ‘them’” [7]. Trythall makes sound judgements, but only scratches the surface of the scandal, for Parliament, Government and Conservative politics are not his principal subject; the real politics and the mechanics of this monstrosity are largely elsewhere. In order to explore the mysterious workings of ‘conventions’ in the elusive, vague, variable and deeply treacherous real world of politics and sovereign executive action that Dicey had skilfully circumvented, evaded or rationalised throughout his book, we must turn again to the case of Hore-Belisha and examine that in the context of an elusive representative of conventions of the constitution, which has always allowed executive government, when threatened to be checked in it purposes by Parliament or Courts, to find a solution, to paraphrase von Clausewitz, ‘by other means’, when the urgent need arises [8]. Before we examine that issue, it is important to preface consideration of this difficult area by returning to HWR Wade’s critical analysis of the use of prerogative; particularly in what he termed a “murky administrative area”, selecting for review first the citizen’s right to travel, and the matter of passports, but expanding his survey more widely from there [9].For many years government claimed “unfettered discretion to grant, deny or cancel a passport without reasons given” without any fair right of appeal or any legal remedy [10]. Wade protests his objection that passports have anything to do with the prerogative, in a phrase beloved of jurists; “in its proper sense” [11]. This is because in Wade’s opinion passports are a mere administrative document, and have nothing to do with the common law; they have nothing to do with the legal right of anyone to go abroad; rights which are, “a matter of common and statute law, which the Crown has no power to alter” [12]. Nevertheless, in spite of Wade’s analysis, the government does exercise this unfettered power, in spite of it being a clear “abuse of power” and continued to do so, presumably under its unfettered executive discretionary authority [13]. Wade protests the requirement of the courts to protect themselves from the direct or more common indirect attacks of parliament on the “jurisdiction of the courts”, by parliamentary draughtsmen attempting to “create uncontrollable discretion” for the executive [14]. He insists that it is Parliament’s purposes that “drive the judges to evasive action”; referring to our “lopsided constitution”, and pointing to Congreve v. Home Office (1976, Queens Bench, 629); in which Counsel for the Home Office informed the Court of Appeal, and Lord Denning that if the Court interfered with the revocation of TV licences, “it would not be long before the powers of the court would be called in question” [15]. This led to an apology to the Court of Appeal, in what Wade describes as a “bizarre” incident, but it is scarcely unique in Britain’s long history of contested power; TV licences is scarcely an issue likely to be selected to provoke a major crisis (save through a blunder), but perhaps this ‘accident’ merely reveals that the executive will test the ground to see what is possible, in order to express its sovereign prerogative by the most convenient means. Wade at least implies that the executive required some ingenuity to work out ways to circumvent the reach of the courts, but it took the investigative journalist David Leigh, writing round the same time as Wade’s lecture was first published, to point out that: “The final loophole stopped up by Whitehall is in the courts……Until 1968, a ministerial certificate was enough to prevent government documents being disclosed in a court case, the courts accepting that such a certificate marked the frontier line beyond which disclosure ‘would be injurious to the public interest’” [16]. The courts finally stopped at least some of the more egregious abuses of secrecy this covert activity produced, but as so often in this treacherous world of changing frontiers of secrecy, Leigh does not suggest even this problem had been entirely eliminated by 1980. The unexpected is always just around the next corner. If one sovereign executive discretionary solution is thwarted, there remains a vast hinterland of options to call on [17]. We must now turn to examine what ‘other means’ have actually accompanied the prerogative, from the shadows. In the case of Leslie Hore-Belisha, the mysterious activities (especially to historians, at least until recent years), of Sir Joseph Ball (1885-1961), may usefully if tentatively be pursued (for this is definitively ‘murky’); who played a major part in the departure of Hore-Belisha from Government, according to the historian RB Cockett [18]. Cockett presents a web of deceit in which Hore-Belisha is almost a minor, nevertheless calculated casualty. Sir Joseph Ball is claimed to have secretly purchased and run the Pro-German, anti-American, anti-semitic news magazine the ‘Truth’ (a title of profound irony), for the Conservative Party in the 1930s, and to use the journal as a mouthpiece to serve Chamberlain and Conservative Party policies. Promoting vicious pro-German, pro-Fascist anti-semitism the new paper’s “anti-semitism was to scale new heights with its character assassination of Leslie Hore-Belisha, the Jewish ex-war minister, in January I940”. It is not clear that Chamberlain personally ordered the several attacks on Hore-Belisha (and on his business dealings) that appeared in ‘Truth’ in January, 1940 [19]. It must be remembered that Ball was not only a senior MI5 officer, and the first Director of of the Conservative Party Research Department (1930-39), a job found for him by JCC Davidson, but Ball was also a very close friend of and advisor of Chamberlain [20]. A passionate fly-fisherman, whenever he could, Chamberlain went on much prized fishing trips with Ball, stayed at Ball’s cottage near the River Test, who in turn was an expert fly-fisherman, and Chamberlain’s close confidant [21]. Hore-Belisha was pressured to resign on 5th January, 1940 and his resignation was accompanied by a sniping article attacking him in ‘Truth’ (one of a number published against him since 1937). Following some strong adverse reaction by anti-Chamberlain politicians and press against the effective sacking, that took Chamberlain a little by surprise, and amid suggestions the sackings had been caused by “reactionary Generals”; there was a sham manoeuvre to dress the resignation as part of a desire by Chamberlain to move Hore-Belisha to the Ministry of Information. Before this undesired outcome might materialise, ‘Truth’ returned to its attack on the beleaguered Hore-Belisha, including allegations of his financial misconduct. Hore-Belisha left the Government, and disappeared from effective politics altogether. This kind of activity had long been associated with Ball’s business methods, for this was a man with a considerable if shadowy, dangerous and elusive history in his secret dealings in public life [22]. Ball is believed to be responsible in part or even as principal in the Zinoviev letter scandal of 1924 [23]. This was also a man who bugged Churchill’s phone for Chamberlain, both bugged and infiltrated the Labour Party with comprehensive thoroughness, used and encouraged the career of the young Guy Burgess (1911–1963), probably as a courier in his clandestine schemes; and Ball is reputed to have been the intermediary for Chamberlain who attempted to negotiate a peace with Hitler in 1940, through the Italians, and without any Foreign Office oversight [24]. Ball survived even Sir Winston Churchill’s (1874-1965) rise to PM, and an investigation by the anti-German senior civil servant Sir Robert Vansittart (1881-1957) [25]. The man who bugged Churchill’s phone, and had tormented him through the columns of ‘Truth’, nevertheless moved smoothly through the conventions and usual channels, to become Deputy Chairman of the Security Executive under Churchill’s leadership of the Government, at least until 1942 [26].The Templewood PapersResearch on Ball is very difficult (Ball did not intend to leave an audit trail behind him), illuminated especially by the journals and diaries kept by Ball’s key Italian intermediary in his clandestine foreign policy activities; the Maltese born Inns of Court lawyer Adrian Dingli (1881-1945), Legal Counsellor to the Italian Embassy in London: a classic example of Ball’s typical methods of developing contacts or information in key places; to find a junior participant, capture, hold and exploit them [27]. Following the launch of Hitler’s Blitzkreig in the West against Belgium and France, the retreat of the BEF, the fall of Chamberlain in May, 1940 and Mussolini’s declaration of war on Britain on 10th June 1940, Ball finally knew that Dingli was now not only surplus to requirements, but dangerous because Ball would have realised that matters now entailed not merely a change of political personnel in Britain with Churchill’s overthrow of Chamberlain, but of the whole order of things, and thus of the conventions of executive action; and that given the intimate details of his activities contained in Dingli’s diary, his own reputation was now in jeopardy; Ball was not Chamberlain, and if that relationship may yet provide some protection, Chamberlain died on 9th November, 1940 [28]. More worrying for Ball, as the complexities of clandestine activities began to unravel under the pressure of catastrophically adverse events for him in Spring, 1940, Dingli’s relationship with Ball had deteriorated badly when he was criticised by Ball for exceeding his instructions in his last trip to Italy for Ball, as the scheme for an Italian sponsored peace initiative unravelled. Dingli reacted by asserting he would not accept responsibility for the consequences if Mussolini’s proposed offer to mediate between Chamberlain and Hitler was rejected; a serious personal mistake to make when dealing with Ball [29]. The grim future awaiting Dingli as a consequence of his decision to challenge Ball was found by Mills in the Templewood Papers, in a letter to the ex-MI6 officer Sir Samuel Hoare, Viscount Templewood (1880-1959) in 1952, in which Ball acknowledged that in Italy he employed an “agent double”, and that Ball: “soon became convinced that . . . this agent was most untrustworthy, and I arranged for M.I.5 to look after him in the usual way. He [Dingli] eventually shot himself when he was on the eve of being arrested by Scotland Yard for, I believe, some Company frauds” [30]. Ball wrote to Templewood because he was trying to track down all the unsettling records and journals Dingli had made and shared with his other Italian contacts; more particularly with the Italian Ambassador in London at the crucial period in the late 1930s, Count Dino Grandi (1895-1988) [31].The chilling reference to MI5 ‘looking after [Dingli] in the usual way’ is noticed by Mills, who speculates that this may explain the raising of the fraud charges against Dingli, a point perhaps confirmed by their timing, at the end of the war [32]. There is also an uncanny resonance with Hore-Belisha’s experience of Ball’s attentions, whether through coincidence, or technique; charges of financial misconduct suddenly surface from nowhere, to speed Hore-Belisha’s departure from the Cabinet. Mills thinks the fraud charges against Dingli were established in 1945, because Ball indicates Dingli committed suicide just before he was to be arrested [32]. Ball appears to have realised that whatever papers were seized by MI5 from the Dingli household, some had survived. They had. Dorothy Dingli, his widow had the presence of mind to save two copies of her husband’s diaries before MI5 seized them, and kept them until she could safely send them on to Grandi for safe keeping in Italy, and Grandi died in 1988. Ball seemed to realise Grandi may have a copy of the troubling diaries, and made attempts to arrange an interview with Grandi, when the ex-Ambassador made a brief visit to Britain in 1955; ostensibly for Ball to discuss with Grandi other potentially awkward matters arising from their wartime relationship, which he proposed could damage the reputation of them both, and in spite of having spiked Dingli’s “false accusations”; but Grandi departed Britain without Ball succeeding in his plan [ 34]. For Mills, the ruin of Dingli and the complete destruction of his reputation became critical for Ball in order to protect his own reputation, and probably that of Chamberlain’s after the war. Ball had read the Dingli diaries, and Mills contrasts the surviving Dingli diaries as a unique, restrained, albeit pro-Italian, and naive source on the secret negotiations between the British Prime Minister and the Italian Embassy in the 1930s, when compared with the ambiguity and self-serving bias of the surviving Ball papers [35]. Sir Joseph Ball achieved his aim to preserve his reputation, up to his death in 1961 [36]. There has even been an effort to construct a partial rehabilitation of Chamberlain’s reputation in recent years, from the ‘guilty men’ thesis of the immediate post-war view; to thoughtful leader, who had been dealt a bad hand in Britain’s defence preparedness for war, and his appeasement policy later considered a resourceful effort to ‘play for time [37]’. The Unacceptable Face of CapitalismBall was not quite finished when he finally left behind his proficiency in the dark arts as a functionary of the conventions of secret sovereign executive action, to return entirely to private life in business; where he had maintained some knowledge and interests throughout, particularly in mining [ 38]. He was, as ever discreetly, soon found to be behind the creation of a new substantial industrial company in Britain, at the turn of the fashionably modern decade of the 1960s; in business Ball proved to have devised a business model with a future; his new business masterpiece was Lonrho, and his last great ‘contribution’ to British public life was his selection of the man to lead it: ‘Tiny’ Rowland (1917-1988), who caused yet another Conservative PM, Edward Heath some anguish in having to describe the spectacle of Lonrho’s bitter board room activities and disagreements under Rowland, spilling out into the public domain in 1973, when in Parliament, Heath was reduced to the helpless description of Ball’s last creation as, “the unpleasant and unacceptable face of capitalism” [39]. Let us look at that ‘face’; especially at the top, its public face to the world; its driving force in the world, and especially in colonial and immediately post-colonial Africa. On 3rd February, 1960 the then Prime Minister, Harold MacMillan (1894-1986) gave a speech at Cape Town in South Africa which had consequences that reverberated through Britain and its dependencies for decades to come. The speech acquired a famous title, the ‘Winds of Change’ speech. It contained this memorable line: “The wind of change is blowing through this continent. Whether we like it or not, this growth of national consciousness is a political fact. We must all accept it as a fact. Our national policies must take account of it” [40]. On return to Britain MacMillan was faced with turning that ambition into reality, in a country that was still essentially a bastion of Imperialism. Decolonisation would henceforward take two routes in British geopolitical strategy; formal and informal, public and private; political and business; open to inspection and hidden. At just this juncture, 1960-61 Sir Joseph Ball’s Lonrho (London and Rhodesia) mining conglomerate changes gear, its level of ambition rises, and he selects Rowland as the man to lead it. Lord Duncan-Sandys (1908-1987), son-in-law of Churchill, who served in MacMillan’s Cabinet as Defence Minister, who then continued in ministerial office in Commonwealth Relations and the Colonies until 1964, was also a director of Ashanti Goldfields Corporation, which was bought by Lonrho, and Sandys in time became Chairman of Lonrho. He was caught up in the Lonrho scandal, with suggestions made of the bribing of African politicians and of breaking sanctions against Ian Smith’s Rhodesia. Sandys was known to have supported Ian Smith over unilateral independence [41]. Before Sandys, the Chairman of Ashanti had been Major-General Sir Edward Louis Spears (1886-1974), a close friend of Churchill; a friendship forged in WWI in France when Spears was in a position to assist Churchill, whose career had been in difficulty since the Dardanelles disaster. Spears had also been an MP and member of the ‘Eden Group’ of anti-appeasement MPs, that Joseph Ball dismissed as ‘glamour boys’ in ‘Truth’, a group whom he considered sneeringly as Churchill’s courtiers [42].Hopkins has neatly encapsulated the conundrum of Britain’s post-war rapid decline as an imperial power, following independence for India in 1947, and the Suez fiasco in 1956; and with the hegemony of a dominant and anti-colonial USA, and Britain forlornly manoeuvring to make sense of its decline, and to recover something from the debris of Empire, in new ways that made sense to British policymakers: “The concept of informal empire has always been elusive. However, if we avoid the term because of definitional difficulties, we are left with the problem of how to treat countries that retained their formal independence but were clearly subordinated to an external power”. Joseph Ball had always been a master of the forces that exert secret, silent external power [43] to produce subordination, and the instruments to enforce it clandestinely; and no doubt was an apt tutor and example to his acolytes in Lonrho before he died in 1961. Tiny RowlandIn 1990, with classic British respect for carefully timed precedent, two years after ‘Tiny’ Rowland had died, an early day motion (EDM) was put down in Parliament (signed by the Labour Peer Lord Campbell-Savours) on the matter of the supervision of takeovers of newspapers, which read as follows: “That this House is increasingly of the view effective scrutiny of newspaper acquisitions may have been effectively avoided in the case of Mr Tiny Rowland taking control of The Observer by a failure on the part of MI6 to disclose the nature of its true relationship with Mr Rowland and to make its files on him available to the Monopolies and Mergers Commission; believes that the Rowland/Lonrho/MI6 links date from the chairmanship of Lonrho of Sir Joseph Ball, a former head of British intelligence; finds it of further interest that, after taking effective control of Lonrho in 1961, Mr Rowland had on his board Mr Nicholas Elliott, another senior MI6 officer and a man whose high level secret service activities warrant mention in ‘Spycatcher’; notes the suggestion that Mr Elliott was Mr Rowland’s formal link with MI6; is not therefore surprised to see Mr Rowland’s confirmation of 20th November 1975 that his file was so confidential that a Department of Trade and Industry Inspector was only permitted to view it if accompanied by two MI6 officers; believes that the Monopolies and Mergers Commission Observer inquiry was deficient; is disturbed by what may prove to be a close link between MI6 and an apparently independent newspaper with a radical tradition; and calls upon Mr Tiny Rowland to divest himself of control of The Observer” [44]. State of ExceptionThere is nothing like the sale of a newspaper, even in the 21st century, to stir politicians out of their typical lethargy, into panic and impetuous action. Hence the desire of the Conservative government to pass legislation to protect its convenient relationship with a preferred newspaper; and so much for free markets, and free enterprise; just not when it is not in the interests of the conservative Party. Today it is the the sale of the “Telegraph”; vital not as a significant economic enterprise (the print Press is a redundant medium, save for its power over the News Agenda in politics, primarily for the future prospects of political parties); but in a world of Chartered and Franchised mainstream broadcasters, determined in their direction of news reporting by regulated rules of ‘impartiality’; broadcasters’ ‘impartiality’ can only be established in setting each day’s ‘News Agenda’, not by the events themselves; but by a determination of what is acceptable as ‘newsworthy’, which raises the question – by what test? The only external, independent test to determine what is ‘impartial’ in the coverage of news for a Government Chartered or Franchised broadcaster can only be established by what is already determined to be newsworthy by the other Press; at least in general terms. There is no other established, usable, acceptable comparator, and no other demonstrable test of ‘impartiality’. Self-justification that departed consistently from the conventional Press new agenda over time, save by exception, would be difficult to justify. The mainstream print media is the only viable comparator for broadcast media to demonstrate ‘impartiality’ in the selection of the news agenda (save social media, which is pre-determined by all the mainstream media and politicians to be irresponsible and disreputable, by definition – even when they follow it). Politicians are primarily driven to seek the support of the Press because of the general impact of the Press coverage of Government or Opposition and of establishing the news agenda on which politicians rely; and politically-minded billionaires are inspired to acquire newspapers, in order to exert influence over both politicians and public, with effects far beyond the leverage of their investment. In Sir Joseph Ball’s working life many Prime Ministers passed through office; and without attempting comprehensiveness in that long list, but merely to go no further than those mentioned here (Neville Chamberlain, Winston Churchill, Harold MacMillan, Edward Heath); we may note that Prime Minsters come and go, leaving some lasting mark of their period in office, or not, or for better or worse; Ball, on the other hand or rather and more accurately, what he represented of sovereign executive authority, goes on forever. There is much of this history, and indeed of the reality of decolonisation beyond the mere rituals of departure, that is still to be discovered by historians. They have a hard job, still in front of them. This history is not seeking to be written.Sir Joseph Ball’s influence in public life, virtually all of it as a public servant, one way or another, and even in private life through his long, arcane and impenetrable links to sovereign executive government (no merely nominal, ceremonial sovereignty evidenced here); from his first connections to the intelligence services around the First World War, until 1990 and his unexpected posthumous appearance as an éminence gris bridging public and private life (and public and private law), in an EDM laid before Parliament almost forty years after his death; Ball’s shadowy reach remains immense; especially in its implications for the conventions of executive discretionary authority. This influence is not peculiar to the individual. For Joseph Ball was simply a public servant, and the shadows in which he worked and thrived were representative of a greater authority, and of institutions with access to unchallenged power. Now here is indisputable evidence for the continuing, enduring existence of a resilient, sovereign executive ‘convention of the constitution’, in action; adaptive to all circumstances, protean in nature, fleet of foot and sufficiently flexible to be always free from the effects, or inconveniences of law; while always being lawful, or at least, deniable [45]. The culture spawned by this discretionary authority seeps into the fabric, then the bones and marrow of both the constitution, and of the society on which this parasite of prerogative feasts, lives and thrives. Dicey was not unique in not observing or even recognising the nature, or doubting the very existence of such phenomena – because it is so well hidden; not least from consciousness [46]. This unknown power has but one test: who decides on the state of exception [47].Blackstone explained how the prerogative worked in its ‘absolute perfection’, and if there is a blemish, at the worst blame duly falls on a minister or servant of the Crown, and not the Crown itself: “The crown can do no wrong” [48]. Notes 1 Robert Blake, ‘The Conservative Party from Peel to Churchill’; London: Fontana, (1976); Ch.VII, p.232. It appears both Chamberlain and JCC Davidson were involved in the appointment of Ball; see text below.2 AV Dicey, ‘Introduction to the Study of the Law of the constitution’; London: Macmillan, (1915); https://files.libertyfund.org/files/1714/0125_Bk.pdf; Accessed, 3rd June, 2020; Part III, Ch.XV; p.306.3 Quintin Hogg, Lord Hailsham, ‘Elective Dictatorship’; in, ‘The Richard Dimbleby Lectures’. London: British Broadcasting Corporation, (1976). Broadcast on BBC TV, 14th October, 1976. Hailsham did not invent the term, but applied it not to Dicey’s abstracted ‘nation’, but in particular to Parliament. His target was the majoritarian, ‘strong government’ tendencies produced by the British Constitution; aided by the FPTP electoral system, the virtually absolute control of the Government over legislation, in a system that enhanced its capacity to apply generally strict party discipline through the patronage of the executive, the ability to exercise wide executive powers; all factors that were enhanced by the conventional nature of the unwritten constitution. 4 For the Leslie Hore-Belisha scandal see, AJ Trythall, ‘The Downfall of Leslie Hore-Belisha’; in ‘Journal of Contemporary History’; Vol. 16, No. 3, (July, 1981); pp.391-411.5 AJ Trythall, Ibid: p.394-5.6 AJ Trythall, Ibid; p.400, quoting Brian Bond (ed.), ‘Chief of Staff: The Diaries of Lieutenant-General Sir Henry Pownall’, Vol. I, (1972).7 AJ Trythall, Ibid; p.408.8 Carl von Clausewitz, ‘On War’; New and Revised abridged edition by A Rapoport (ed.), of Col. JJ Graham’s 1908 translation of the full three volume text. Harmondsworth, Middlesex: Pelican Books, (1974); Book I, Ch.I.24, p.119, “War is a mere continuation of policy by other means”. For Clausewitz war was a political act; “a real political instrument, a continuation of political commerce, a carrying out of the same by other means”. There are different means to conduct politics to achieve political ends. 9 HWR Wade, ‘Constitutional Fundamentals’; 32nd Series, Hamlin Lectures: London: Stevens and Sons, (1986); pp.50-60, and for travel pp.50-53. Passports, it should be noted are a recent, principally early 20th century innovation.10 HWR Wade, Ibid; p.50.11 HWR Wade, Ibid; p.51.12 HWR Wade, Ibid; p.51, historically it had such a right under writ, ‘ne exeat regno’, to prevent the clergy from “resorting to Rome”.13 HWR Wade, Ibid; pp.51-53. The objections over this breach of law led to some small changes, but summarised by Wade in this way (1986): “The right to leave without a passport is apparently now recognised. But that by itself is of little use if the government declines to provide the document which is required for entry to foreign countries” (p.52). Notice that this neat operational manoeuvre is very like the British Library description of the Highway Code described above, where prosecution may follow a breach of observation of the rules of a non-legal document: British Library, ‘Legislation of the United Kingdom: subordinate legislation’; in, ’Social Sciences Collections Guides Official Publications’; www.bl.uk/subjects/national-and-international-government-publications; Accessed 30th June, 2020; p.4-5. The sovereign executive discretionary authority will adapt to the circumstances that confront it, and may use whatever opportunities its broad menu of techniques of administrative execution offer, to reassert its control if its conventional means of exception are thwarted. The world is always full of unforeseen consequences; sovereign authority survives on adaptation to a changing world, by whatever means best serve it. 14 HWR Wade, ‘Constitutional Fundamentals’; 32nd Series, Hamlin Lectures: London: Stevens and Sons, (1986); pp.67.15 HWR Wade, Ibid; p.70.16 David Leigh, ‘The Frontiers of Secrecy’; London: Junction Books, (1980); p.43-44.17 HWR Wade, Ibid; p.79. In the Epilogue lists the issues to which the Hamlyn lectures invite attention: “the crude and injurious electoral system; the defective mechanism of legislation, and in particular the supposed impossibility of entrenching fundamental rights; the problems of the abuse of power, legislative as well as administrative; and the position of the judiciary under the pressures which the political and administrative system now puts on them”. 18 RB Cockett, ‘Ball, Chamberlain and Truth’; in ‘The Historical Journal’; Vol.33, No.1, (March, 1990); pp.131-142.19 RB Cockett, Ibid; p.136.20 Graham Stewart, ‘Burying Caesar: Churchill Chamberlain and the Battle for the Tory Party’; London: Weidenfeld & Nicolson, (1999); p.277; where Stewart describes Ball as the “noted Central Office Svengali at the Conservative Research Department”, who in 1937 was clearly politically active, as he was part of a business and City driven party revolt in 1937 against Chamberlain’s ‘National Defence Contribution’ (rearmament financing) proposal; p.368, for his use of ‘Truth to ‘rubbish’ Churchill, and use wire-taps to eavesdrop him, and others for Chamberlain’’. For Ball’s work in the Conservative Party see, ‘The Conservative Party Archive’; http://seas3.elte.hu/coursematerial/LojkoMiklos/Brief_Illustrated_History_of_the_Conservative_Party.pdf; Accessed 26th June, 2020. The ‘Whip’s Office Papers’ as accounted here seem rather incomplete, save for the 1930s and 1940s, which contain, “Sir Joseph Ball’s proposals for Party reorganisation, food and agriculture, structure of the National Union, trade union vote, Party political broadcasts, National Liberal reflections, civilian clothing, BBC Charter, women and the war effort” (unpaginated, under ‘1936 to Present’)”. For Ball and JCC Davidson see, Adrian Phillips, ‘Fighting Churchill Appeasing Hitler’; London: Biteback Publishing, (2019); p.51-2, for Ball’s early work; p.52-54, for Ball and Davidson.21 Graham Stewart, Op.cit.; p.353. On 15th March, 1939, the day Hitler marched into Prague, when the news arrive in Whitehall, Chamberlain was on a fishing trip with Ball. Adrian Phillips, Ibid; p.53.22 Arnold Beichman, ‘The Conservative Research Department: The Care and Feeding of Future British Political Elites’; in, ‘Journal of British Studies’, (May, 1974); Vol.13, No.2; pp. 92-113. “He is one of those mysterious figures who stray through the pages of British history” (p.99). Beichman provides the flimsiest sketch of Ball’s earlier life and career, including his entry into the intelligence services during WWI as a civilian; somehow acquiring the military rank of ‘Major’ along the way, to say nothing about his knighthood. 23 RB Cockett, Ibid; p.131. See also, Gill Bennett, ‘The Zinoviev Letter: the conspiracy that never dies’; Oxford: OUP, (2018); p.163-4. Ball is here described in that context by Robert Blake as “a quintessential éminence grise”, but discreetly does not add, a very dangerous one.24 William C. Mills , ‘Sir Joseph Ball, Adrian Dingli, and Neville Chamberlain’s ‘Secret Channel’ to Italy, 1937- 1940’; in, ‘The International History Review’; Vol.24, No.2, (June, 2002); pp. 278-317; p.278, which frames the Italian Connection: “Ball’s secret contacts with the Italians are directly related to the ongoing debate over the appeasement policy pursued by Chamberlain in the late 1930s”, and in the particular context of the 1940 negotiations with the Italians, Ball met Giuseppe Bastianini (1899–1961), Italian Minister of Foreign Affairs on 23rd April, 1940, “to discuss the possibility of using Mussolini to find the basis of a peaceful settlement in Europe” (p.312); after the fall of Chamberlain: “Ball, on the other hand, prospered in the new government headed by Churchill. Even as prime minister, however, Churchill’s freedom to make changes was constrained by the need not to antagonize Chamberlain loyalists” (p.313). Adrian Phillips, Op.cit.; p.62-63, pp.72-74, p.143, p.269-271, p.365-368, for the Ball-Chamberlain ‘back-channel’ to Italy. H. Matthew Hefler, ‘‘In the way’: intelligence, Eden, and British foreign policy towards Italy, 1937–38’; in ‘Intelligence and National Security’ Issue 33, No.6; pp.875-893. Graham Stewart, Op.cit.; p.286, identifying the tensions between Eden (at the FO) and Chamberlain, noticed by the Italian Ambassador, Grandi, and dating Chamberlain’s distinct preference to use Ball rather than the FO from 1938. For the Guy Burgess connection to Ball, see B Penrose and S Freeman, ‘Conspiracy of Silence: The Secret Life of Anthony Blunt’; London: Collins, (1986); pp.207-209. Arnold Beichman, Op.cit.; Vol.13, No.2; p.99. Beichman claims Ball refused to employ Burgess, but that matter is clearly contested. For the scale of Ball and Davidson’s infiltration of the Labour Party (p.99, footnote 31). Andrew Boyle, ‘The Climate of Treason: Five who spied for Russia’; London: Hutchinson & Co., (1979); pp.169-174, for Sir Joseph Ball managing Guy Burgess.25 RB Cockett, ‘Ball, Chamberlain and Truth’; in ‘The Historical Journal’; Vol.33, No.1, (March, 1990); pp.138.26 William C. Mills, ‘Sir Joseph Ball, Adrian Dingli, and Neville Chamberlain’s ‘Secret Channel’ to Italy, 1937- 1940’; in, ‘The International History Review’; Vol.24, No.2, (June, 2002); p.313.27 Dingli was the son of Sir Adrian Dingli, the Chief Justice of Malta. He served as a Major in the Royal Marine Artillery during the First Word War, and he was awarded the OBE in 1919 for his services to the country. H. Matthew Hefler, ‘‘In the way’: intelligence, Eden, and British foreign policy towards Italy, 1937–38’; in ‘Intelligence and National Security’ Issue 33, No.6; p.877, p.885, p.887 for Dingli’s involvement in the Chamberlain-Ball clandestine negotiations with Italy. See also, Adrian Phillips, Op.cit.; p.62-63.28 William C Mills, Op.cit.; p.313. Graham Stewart, Op.cit; p.374-5, describes Ball in 1939, and Sir Horace Wilson (1882-1972), Head of the Civil Service and Permanent Secretary of the Treasury (who like Ball was also very close to Chamberlain), along with others; pressing for a joint declaration with Germany against “forcible aggression” as an instrument of international policy. Stewart concludes that Chamberlain’s reliance on covert diplomacy and unconventional means, “underlined that Chamberlain had, in effect, lost the public debate” (p.375). 29 William C Mills, Ibid; p.312. Mills states that Mussolini offered to present Chamberlain’s proposal for peace to Hitler, as an Italian suggestion. Chamberlain was suspicious and apprehensive about the consequences and rejected it.30 William C Mills, Ibid; p.313. The surviving records, including Ball’s demonstrate that Ball worked closely with Dingli for three years, and praised him as always having “been extremely accurate in the past”, as late as May, 1940 (p.316).31 Adrian Phillips, Op.cit.; pp.63-65, p.73-74, for contacts between Grandi, Ball, Dingli and Chamberlain.32 William C Mills, Ibid; p.314.33 William C Mills, Ibid; p.314. Mills checked Dingli’s will (including a late codicil), and the death certificate, dated 29th May, 1945 at the end of the war. It refers to Dingli killing himself with, “a self inflicted gun shot wound while the balance of his mind was disturbed”.34 William C Mills, Ibid; p.314.35 William C Mills, Ibid; p.316-317.36 William C Mills, Ibid; p.317. Mills describes Ball’s papers as, “a carefully woven tapestry of lies”37 Andrew Reekes, ‘More than Munich: the forgotten legacy of Neville Chamberlain’; Alcester, Warwickshire: West Midlands History, (2018); who identifies the ‘Guilty Men’ thesis as the product of a devastating little book produced by ‘Cato’, three journalists (actually Michael Foot, Frank Owen and Peter Howard, who represented the politics of the three principal parties), hastily produced following the Dunkirk disaster. Reekes book is an attempt to rehabilitate Chamberlain’s reputation putatively on the basis of his earlier claims to being a social reformer, up to 1935. One problem with all such rationalisations is that it merely throws the failure back on a longer and deeper failure of British policy and politics, rolling back over two decades to the disaster that was the Treaty of Versailles, 1919 and its consequences; that usefully spreads the ‘blame’ so widely as to seem pointless; save only that Chamberlain played a leading role in its slow building and unfolding, and carries the ultimate responsibility at the top for the final, brutal result of the abject failure of the policy he both largely determined and led: world war. Robert Self, ‘Neville Chamberlain’s Reputation: Time for Reassessment’; in, ‘Historically speaking’; Vo.8, No.5, (May/June 2007); pp.18-20. Self summarises the judgement of his biography, ‘Neville Chamberlain: A Biography’; Abingdon: Routledge, (2006) in this article in these words: “Chamberlain is presented in my biography as neither the inspired hero so extravagantly lauded in the immediate aftermath of Munich nor the foolishly misguided amateur so viciously denigrated after his fall”(p.20). H. Matthew Hefler, “‘In the way’: intelligence, Eden, and British foreign policy towards Italy, 1937–38’; in ‘Intelligence and National Security’ Issue 33, No.6, (2017); p.876-87, provides a brief summary of the current standing of his rehabilitation. The problem with the rehabilitation is that it never quite addresses the full implications of the relationship between Chamberlain and Ball, or what it may inform us about his values or ideology, or even his wish to know. The nearest we come in Hefler is this observation: “Even in his diary Chamberlain went to efforts to conceal his involvement in a conspiracy involving Grandi, Ball, Dingli and himself. Equally, Chamberlain recorded asking Grandi ‘what effect … [Anglo-Italian] conversations [would] have on M[ussolini]’s attitude to Austria’, and that the ambassador replied it ‘would encourage him … to take a stronger and more independent line’” (p.887, quotation from ‘Chamberlain’s Diary’; in, ’Documents on British Foreign Policy’ (DBFP); Second Series, 19 vols. London: Her Majesty’s Stationary Office, (1937–1938); Chamberlain’s Diary, 19.2.38; 2, XIX,1142).38 London and Rhodesia Mining and Land Ltd., (1909); later and infamously, Lonrho.39 Reported in an article under the title, “Mr Heath Calls Lonrho Affair ‘The Unpleasant and Unacceptable Face of Capitalism’” in ‘The Times’ (London), 15th May 1973; p.16. For Ball’s knowledge of Rowland, see Hennie van Vuuren, ‘Apartheid Guns and Money: a tale of profit’; London: Hurst & Co. (2018); p.371, suggests that Ball may have become Rowland’s controller when Rowland was detained on the Isle of Man during the war. For Rowland’s detention (he was born Roland Furhop, in India to a German father and Dutch mother, and was a German citizen until 1934 after the family moved to Britain), see Andrew Cohen, ‘Lonrho and Oil Sanctions against Rhodesia in the 1960s’; in ‘Journal of Southern African Studies’; (December, 2011), Vol.37, No.4; pp. 715-730. Rowland was unqualified, but became a member of the medical corps, until December 1941 when he was heard celebrating the sinking of HMS Repulse and Prince of Wales, following which, “he was detained under Regulation 18B, the same instrument used to hold the leaders of the British Union of Fascists, and remained in detention until July 1945” (p.718). He was employed by the mining firm London and Rhodesia, run by Ball and operating in Africa. He made his name by negotiating the sale of a business owned by the mining firm to Rio Tinto Zinc. In Cohen’s words, “he offered Lonrho’ s management team, composed of Sir Joseph Ball and his son Alan, £35,000 if they accepted a deal contrary to the best interest of their shareholders. They did, and Rowland collected an estimated £100,000 finder’s fee for securing the purchase” (p.718-9). 40 ‘Winds of change’ speech, 3rd February, 1960. Printed copy of original text, with revisions; 43 pages. http://www.africanrhetoric.org/pdf/ayor%206.2%205%20Harold%20MacMillan%20-%20The%2 0wind%20of%20change.pdf; Accessed by Google search, 26th June, 2020. Note that it is fact the ‘wind’, singular of change. For the phrase that provided the title, p.17. Slight amendments to punctuation have been made from the printed text for easier reading.41 For Sandy’s connections to Churchill see, Graham Stewart,42 Spears was able to introduce Churchill to the formidable Clemenceau during this trough in Churchill’s political career. Later he had campaigned for Churchill in his Dundee election campaign, when Churchill was unable to campaign. Spears represented Carlisle as a ‘National Conservative’ MP, 1931-45.43 AG Hopkins, ‘Globalisation and Decolonisation’; in ‘The Journal of Imperial and Commonwealth History; Issue 45, No.5; pp.729-745, DOI: 10.1080/03086534.2017.1370218; Accessed 26th June, 2020. For quotation, p.736.44 Early Day Motions, House of Commons, ‘The Observer, Mr. Tiny Rowland and M.I.6 (No.3)’EDM #636; Tabled 01 March 1990, 1989-90 Session; https://edm.parliament.uk/early-day-motion/1276/the-observer-mr-tiny-rowland-and-mi6-no3; Accessed 23rd June, 2020. Sir Joseph Ball was not ever known to be head of the British intelligence services, although given his deep and obscure involvement in so much of British life, this may suggest that perhaps more surprises could be in store for us, yet. See also, Peter Wright, ‘Spycatcher: The Candid Autobiography of a Senior Intelligence Officer’; New York: Viking, (1987). Wright (1916-1995), who proclaims himself ‘Assistant Director of MI5’, unsurprisingly does not even record the existence of Ball at MI5 in the Index: although references to Burgess abound, and even the Zinoviev letter rates a mention (p.33), but Ball remains something of an enigmatic Pimpernel. 45 Graham Stewart, Op.cit.; p.375. Stewart describes Chamberlain’s use of Ball and clandestine diplomacy as unlike, “official communications, if these unofficial links were revealed to public scrutiny, Chamberlain could always deny complicity”. Presumably, we may speculate, save perhaps for some sacrificial scapegoat, and only if unavoidable and necessary; the ‘law’ simply does not arise. 46 ‘Intelligence and Security Committee of Parliament Russia’; Presented to Parliament pursuant to section 3 of the Justice and Security Act 2013; Ordered by the House of Commons, (21st July, 2020); HC 632; pp.55. https://docs.google.com/a/independent.gov.uk/viewer?a=v&pid=sites&srcid=aW5kZXBlbmRlbnQuZ292LnVrfGlzY3xneDo1Y2RhMGEyN2Y3NjM0OWFl. Accessed 26th July, 2020. “It is widely recognised that the key to London’s appeal was the exploitation of the UK’s investor visa scheme, introduced in 1994, followed by the promotion of a light and limited touch to regulation, with London’s strong capital and housing markets offering sound investment opportunities” (para.49, p.15): “What is now clear is that it was in fact counter-productive, in that it offered ideal mechanisms by which illicit finance could be recycled through what has been referred to as the London ‘laundromat’. The money was also invested in extending patronage and building influence across a wide sphere of the British establishment – PR firms, charities, political interests, academia and cultural institutions were all willing beneficiaries of Russian money, contributing to a ‘reputation laundering’ process. In brief, Russian influence in the UK is ‘the new normal’, and there are a lot of Russians with very close links to Putin who are well integrated into the UK business and social scene, and accepted because of their wealth. This level of integration – in ‘Londongrad’ in particular – means that any measures now being taken by the Government are not preventative but rather constitute damage limitation” (para.50, p.15): “Twenty years ago, MI5 devoted around 20% of its effort to Hostile State Activity, which includes Russian activity alongside the hostile activity of other states, such as China and Iran. This allocation of effort declined, as the terrorist threat grew. By 2001/02, it had reduced to 16% and by 2003/04 to 10.7%. This fall continued until, by 2008/09, only 3% of effort was allocated by MI5 to all its work against Hostile State Activity (noting that reductions in proportion of overall effort do not translate directly into changes in resource). It was not until 2013/14 that effort began to increase significantly, rising to 14.5% – a level that MI5 says meant that slightly more staff were working on Russia than had been during the Cold War. The past two years have seen ***: currently, ***% is allocated to Hostile State Activity, approximately *** which is dedicated to countering Russian Hostile State Activity” (para.76, p.20). The asterisks are security service redactions to the published report. The 14.5% MI5 effort by 2014 nevertheless did not lead to close examination of any Russian interference in domestic politics in 2014 or 2016: “There have been widespread public allegations that Russia sought to influence the 2016 referendum on the UK’s membership of the EU. The impact of any such attempts would be difficult – if not impossible – to assess, and we have not sought to do so. However, it is important to establish whether a hostile state took deliberate action with the aim of influencing a UK democratic process, irrespective of whether it was successful or not. Open source studies have pointed to the preponderance of pro-Brexit or anti-EU stories on RT and Sputnik, and the use of ‘bots’ and ‘trolls’, as evidence of Russian attempts to influence the process. We have sought to establish whether there is secret intelligence which supported or built on these studies. In response to our request for written evidence at the outset of the Inquiry, MI5 initially provided just six lines of text” (para.39-40, p.12).47 See the chilling insight of Carl Schmitt, ‘Political Theology’; Chicago: Chicago UP, (2005). It was first published in 1922, and perfectly informs the intellectual and political world of thought in which Ball developed his methods, worked, and thrived. 48 Sir William Blackstone, Ibid; Vol.I, Book I, Ch.VII; p.245-246. Tags: •Leslie Hore-Belisha•Nathaniel Mayer Rothschild•royal perogative•Sir Joseph Ball•state of exception•Zinoviev Letter By John S WarrenMore By This Author

For a national convention to be successful, it is necessary for it to gain authority which means, ultimately, statutory authority. It has to exist as part of the legislative process both before and after the putative event of independence.

In recent planning meetings I get the impression that some are just beginning to understand the complexity of the task in hand. This complexity is made all the more confusing because the planning of the convention is being tackled somewhere at the beginning with no idea how to develop and authorise the convention process being examined or discussed in any form.

It is a fundamental principle of the organisation of any project that the objective be established at the very outset. Thereafter the means to achieving that objective must be examined in the greatest detail and only then can a programme of works be set out.

I have attached a series of schedules which are lengthy but contain a clear description of the situation we must face in a number of key areas. The notes are linked to elements of the programme set out below with the reference numbers attached.

1.00 What Is The Objective?

If we begin with the exercise of self-determination it has to be recognised that self-determination can only work if it can be accepted as legislative authority which must happen within the Scottish state whether or not there is a formal declaration of independence, in effect, independence by default. (1a) Of course that is only half the story. If the convention gains the authority of the Scottish people, that authority has to be translated on to the international stage. (1b)

If the above represents the core objective of the exercise, we should consider making a mission statement to this effect, then we can move on to the design of the convention itself.

2.00 The Convention As A Means To An End

If we think of the convention as a machine and view it as such dispassionately then it is possible to create the mechanism in a way that is not affected by prejudices or preconceived notions of its function (1b).

In imagining the convention as a machine, it is also helpful in understanding that this machine has to be capable of performing the function allocated to it from the very outset (2). To analogise, if the plan is to produce an automobile one does not start off with a vacuum cleaner. Whatever machinery the convention requires to follow through with its objective has to be in place at the outset and designed for the function it has ultimately to achieve.

Designing the convention can be addressed as two distinct elements. In the first, a very basic layout aimed at establishing the full tripartite assembly. The second is a more detailed approach to the business of the convention together with the necessity of engaging public voting. One of the key purposes of the convention is designing the Scottish state and this will be the primary function of the convention up until a certain point is reached where it becomes obvious that it cannot be achieved under the current system of devolution. This is where the important decision has to be made(3).

There is also the not unimportant matter of financing the convention (4).



Notes

1.00

a) Establishing the authority of the Scottish people is not as simple a task as one may think. In the first place it has to be paramount that the public understand that any convention has, or will have the power to move legislation forward. In this respect it is absolutely essential that the convention has the involvement not just of ordinary people and parts of civic society but also of elements of political representatives, namely, those elements which exist within the current UK constitutional system. People have to trust the convention to deliver and, like it or not, that involves an existing political system which won’t go away just because some want it to. At the point of achieving independence by default – namely a form of self-determination by which a recognisable authority within Scotland makes decisions which otherwise could not be made – establishes the convention as a statutory body – one which, by the way, will also require affirmation through the Court of Session. Without the involvement of the Westminster MPs this is impossible.

Whatever structure the convention has to have in place to achieve delivery of its objective has to be in place at the outset. From its very inception the convention needs to make decisions and pass resolutions which have a direct impact on the operation of politics from the Scottish perspective within Westminster. In designing the convention process, whatever’s needed at the end has to be in place at the beginning. Five years of intensive research and discussion across a broad range of opinion has demonstrated that this is not negotiable – there is no alternative.

b) It is very important that we understand the constitutional divergence between England and Scotland particularly where steps are taken to return legislative and determinant power to Scotland. Currently we have , through the device of the Scotland Act, an administration which, despite Alex Salmond renaming it “parliament” together with an executive (renamed “government”) is in effect a department of the Westminster system and, in Scottish terms, unconstitutional and, strictly speaking, illegal. Yet this is the Act and the system that gave birth to it that successive independence-supporting parties insist on using to gain permission from Westminster to hold a referendum on independence. It’s like taking a knife to a gunfight.

The Vienna Convention 1979 established in international law that any party or parties to a treaty could withdraw or dissolve that treaty. The means of doing so require some form of authority from the government or governments involved but the Convention also established that elected governments have no right to alter any treaty without the understanding of their people and, of course, the co-operation of the other parties involved. Governments can ratify treaties but they cannot unilaterally alter them, nor do they have any right to prevent other parties to the treaty from withdrawing if they see fit to do so.

In the conduct of the convention there will presumably come a time when a question is put to a popular vote on whether we wish as a nation to continue with the Treaty of Union or to dissolve it. If we assume that the result of such a vote is to remove ourselves from the Treaty, we can then formally instruct our MPs to leave Westminster and, at the same time, issue notice that the Treaty is void. In terms of their legislature, there is nothing that Westminster can do about it although that doesn’t mean that they can’t be thoroughly nasty in other ways.

Of course, it will be some considerable time after its foundation that the convention will reach this stage. A lot of preparation has to be undertaken before we are ready to deal with the consequences of withdrawal and it has to be understood that some other form of understanding, maybe by another treaty, has to be achieved with our southern neighbour. To avoid chaos, some form of expert committee may be formed which, possibly for several months before the decision is taken over the Treaty, will have worked to put the various elements of an independent nation in place and substantial work must be put into making Scotland’s mark internationally. Much of the work in determining all the elements which the convention must address has already been done but it has not been possible to attempt any kind of popular consensus. To examine all this is the main workload of the convention.

There is an additional important factor which should be built into the design of the convention and be active from the outset and that is the matter of the Scottish constitution.

2.0 The Functional Design Of The National Convention

Given the nature of the objective and the means to achieve consensus it has to be understood that the convention cannot simply make policy, it can only pass resolutions which must be put to a popular vote. The engagement of all parties within the convention has to be on the strict understanding that they cannot make judgements relating to key constitutional matters without the authority of the people.

The convention will have the freedom to set its own agenda. As this is so, it has the potential to create conflicting results and substantial confusion given that it cannot be relied upon to address issues in an orderly fashion and that many items which would be under examination will overlap and perhaps even conflict with earlier resolutions. In the ongoing process of the convention a secretariat numbering about six individuals, at least one of which should be a legal expert, should be formed. In addition, a constitutional framework has to be in place. In this way, the wording and meaning of resolutions passed in successive sessions of the convention can be drafted without conflict with previous resolutions.

For the constitutional framework we look back to the Claim of Right. As a constitution in itself it is outdated and, frankly, illegal internationally but contained within it are nuggets of value and it has the suggestion of a new format which can be used to develop a full Scottish constitution as the convention progresses.

Using the American and the Swiss models, a constitution consisting of just five articles covering basic rights can be adopted at the outset of the convention. A group of us are working on this and the exact wording of the articles has not been formulated as yet but suffice to say that the articles will set out the rights such as freedom of association, freedom of speech, subsidiarity in government and the right to contest legislation. Within the articles, resolutions passed at convention meetings can be incorporated ensuring that conflict is addressed before it arises. As the convention progresses to statutory authority, the constitution can then be put to a referendum.

3. Statutory Authority and the Dissolution of The Treaty of Union

If the convention is to be successful then it will reach a point at which steps must be taken to enforce the country’s right to self-determination. Under the UK constitutional arrangements the only legal representatives are the MPs we send to Westminster. Although, for reasons stated above, these MPs will be part of the convention, at no time until this point is reached does the convention require them to formally leave the UK parliament. Some may choose to do so at their own volition but no formal statement is made.

The issue of the instruction has been set out in (1b) above and it should be noted that this is the one and only time that interaction with UK constitutional law takes place. Any challenge that the UK government may wish to make to this or to the successive vote to dissolve the Treaty has to be made internationally and, as has been made clear to us in the past, the UK government hasn’t a leg to stand on.

Of course, all Scotland’s ducks must be in a row and there is nothing here to explain exactly how we ensure that the machinery of the nation state of Scotland can be in place and viable at the exact time of a yes vote. In all probability there will be a period of fractious and messy negotiations before true separation happens but there are many ways that this episode may play out. It is not appropriate to guess.

But is the convention over? Has it done its job and can it be put to bed as it were? A suggestion has been made that the convention, now imbued with statutory authority becomes an element of the legislative system as, say, a second chamber albeit with a slightly altered membership and different terms of reference but this is for the convention to decide although we expect at least that online voting will become the norm for future elections.

4. Where Does the Money Come From?

At the very earliest when IFS were first talking about a convention it was obvious that the funding sources available at that time were woefully inadequate. For the convention to run its full course it will cost somewhere in the region of £2m. Given, for example, the need for the convention to hold regular meetings has to take into account not only the number of meetings but also the length of each meeting. While much of the engagement of each meeting may be online, it should not be assumed that all but a handful of meetings can take place this way. While many members will need to engage by video link, the meetings themselves will be largely in-person.

It is by no means unlikely that meetings may go on for two or three successive days and the some sessions may be less than a week apart. Hiring facilities in advance under such circumstances would be next to impossible. It is, however, possible to lease an appropriate sized venue with a view to using it as a fall-back facility without compromising the policy of holding some meetings at different venues across the country.

Additional costs lie in the employment of full-time staff, video facilities, general expenses and publicity.

Given the size of funding requirements, there is concern about large scale donors potentially compromising the independent integrity of the convention. It was with all this in mind that Scotland Decides was formed to include a small registration fee. This would provide the means to fund the convention through the people and would cover the cost of the convention in addition to the voting platform. It is disappointing that voter registrations have not been in greater numbers than they have so far but it is not surprising given that as of today’s date, hardly anyone even knows that a convention is being planned and that even when publicity gains a bigger audience, the public need to know how the convention will work before any enthusiasm can be generated. Nevertheless, Scotland Decides is there and will be for the next eighteen months at least.

As I have said, this will be the last time I put anything more out about this matter. For anyone wishing more information, I have about forty five pages of data accumulated over the last five years together with the experience of two failed attempts by others who we’ve supported. I would suggest that IFS examine the above in detail at the earliest opportunity.

References:
https://www.legislation.gov.uk/aosp/1689/28/introduction
https://legal.un.org/avl/ha/vclt/vclt.html

https://www.parlament.ch/en/%C3%BCber-das-parlament/how-does-the-swiss-parliament-work/Rules-governing-parliamentary-procedures/federal-constitution/federal-constitution-1848


 

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